Neil L. Shapiro: How the law changed its views about race

Before the 1868 adoption of the 14th Amendment to the U.S. Constitution, this country's history of judicial decisions involving people of different races was not pretty. Perhaps the quintessential example of that epoch's judicial/racial thinking was the 1857 Supreme Court opinion in Dred Scott v. Sandford.

Scott, a slave, had lived with his "owner," Dr. John Emerson, in states and territories where slavery was illegal. When he returned to Missouri, where slavery was legal, he sued to establish his freedom. The court decided 7-2 against him, finding that neither he nor any other person of African ancestry could claim citizenship in the United States, and therefore he could not bring suit in federal court. The rationale was that the drafters of the Constitution never intended such people to count as citizens.

"They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it."

The 14th Amendment, spawned largely by that decision and the just-concluded Civil War, was adopted on July 9, 1868. It provided in part that all "persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside" and that no "state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ... nor deny to any person within its jurisdiction the equal protection of the laws."

That amendment changed the face of racial jurisprudence. In 1880, the court in Strauder v. West Virginia reversed the conviction of a black man who was indicted for murder by a grand jury, and convicted by a jury, from which all black people were excluded by law. Such exclusion, the court held, violated the 14th Amendment and deprived Strauder of his right to a trial by his peers.

"It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the state has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?"

In 1886, in Yick Wo v. Hopkins, the court reviewed the convictions of two Chinese laundry owners for operating their businesses in wooden buildings without a permit from the San Francisco Board of Supervisors. There were about 320 laundries in the city, 310 of which were in wooden buildings with 240 of those owned by Chinese. "No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood. And while this consent of the supervisors is withheld from them and from two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on the same business under similar conditions."

Their convictions were reversed as a violation of the 14th Amendment.

The 14th Amendment began to change the fundamental judicial landscape regarding race, but the journey commenced with its adoption was to be a long and rocky one.

Neil L. Shapiro is a Monterey lawyer who writes about legal issues and other matters for this page. This is the second part of a weekly series in which he analyzes the legal issues that have led up to the potentially landmark affirmative action case Fisher v. Texas, which the Supreme Court is currently contemplating. The case focuses on whether race is an appropriate factor in determining college admissions.